MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           3 October 2000                   
	DOCKET NUMBER:   AR1999033416

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Raymond J. Wagner		Member	
	Mr. Richard T. Dunbar		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That his discharge be changed to a medical retirement.

APPLICANT STATES:  That he had a physical profile at the time he was discharged with instructions to follow up with the VA.  The VA has awarded him a 50 percent disability rating.  Supporting evidence is as listed on the DD Form 149.

COUNSEL CONTENDS:  Counsel makes no additional contention.

EVIDENCE OF RECORD:  The applicant's military records show:

After having had prior service in the U. S. Navy, he enlisted in the Regular Army on 24 July 1992 for Warrant Officer Flight Training.  He entered active duty on    23 October 1992 as a Warrant Officer One.  He completed Rotary Wing Aviator (UH-60) training, military occupational specialty 153D, on 28 October 1993.  He was promoted to Chief Warrant Officer Two on 1 October 1994.

The applicant’s six Officer Evaluation Reports (OERs) for the period 29 October 1993 through 26 August 1997 show his duty title as Aeromedical Evacuation Pilot.  During this period his OERs show he passed all his physical fitness tests and did not have a physical profile.  Except for one relief-for-cause report (which was the result of misconduct), his OERs for this period show he “always exceeded requirements.”  

On 21 April 1998, the applicant completed a separation physical examination.  The examination noted he had a 2 profile in the upper extremities category (U-2) due to status post left shoulder surgery in December 1997.  It was recommended he follow up with Department of Veterans Affairs (VA).  He was found to be qualified for expiration term of service separation.  

The evidence of record shows the applicant was given several temporary physical profiles of U-2 with limitations including physical therapy and zero military flight duties.  

The applicant’s OER for the period 1 October 1997 through 26 June 1998 shows his duty title as UH-60 Pilot.  His significant duties are listed as Air Assault Pilot in the 2d Armored Cavalry’s Aviation Squadron and squadron level S-1 (adjutant) for the Regiment’s Rear Detachment during the Regimental Stabilization Force Deployment to Bosnia-Herzogovina.  Rater comments concerned his duties as  S-1 and the rater rated his performance and potential as “outstanding performance, must promote.”  His rater commented that he had demonstrated outstanding potential for advancement in all of his future endeavors.  His senior rater noted his three future assignments for which he was best suited as Instructor Pilot, Fixed-wing Transition, and Operations Officer.
On 30 September 1998, the applicant was discharged upon completing his required active service.

On 18 October 1999, the VA awarded the applicant a combined disability rating of 50 percent – tinnitus, 10 percent; status post left shoulder arthroscopy, 20 percent; status post excision of Haglund’s deformity with a calcaneal osteotomy, left foot, 10 percent; and degenerative disc disease, 20 percent.  

In the processing of this case, an advisory opinion was obtained from the medical advisor to the Army Review Boards Agency (SEE ATTACHED).  The advisory opinion noted that there is no medical reason to change the applicant’s discharge status.

The applicant rebutted the advisory opinion (SEE ATTACHED).

The Defense Finance and Accounting Service verified that the applicant drew flight pay for the month of September 1998.  Warrant Officer Division, Aviation Branch stated that, basically, unless a warrant officer was medically disqualified for flight duty (i. e., permanently grounded with orders to that effect), he was eligible for continuous flight pay.  

Army Regulation 635-40 governs the evaluation for physical fitness of soldiers who may be unfit to perform their military duties because of physical disability.  In pertinent part, it states that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  When a soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the soldier is scheduled for separation or retirement, creates a presumption that a soldier is fit.  Application of the rule does not mandate a finding of fit.  The presumption is rebuttable and is overcome when the preponderance of evidence establishes the soldier was physically unable to perform adequately the duties of his or her office, grade or rank.

Title 38, U. S. Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical 
condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual’s medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion, it is concluded:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

2.  All of the applicant’s OERs show that his principal duty title was helicopter pilot, that he passed all his physical fitness tests, that he did not have a physical profile and, except for one exception, that he “always exceeded requirements.”  The applicant’s last OER shows that his principal duty title was UH-60 Pilot and his significant duties were Air Assault Pilot and S-1 for the Regiment’s Rear Detachment.  Although the rater’s comments concerned only his duties as S-1, his rater commented that he had demonstrated outstanding potential for advancement.  His senior rater noted his three future assignments for which the applicant was best suited as Instructor Pilot, Fixed-wing Transition, and Operations Officer. The two individuals best situated to know if the applicant could or could not perform duties as a pilot either at the time or in the future were not aware that he could not.

3.  The applicant was already scheduled for separation.  There is no evidence to show that he had ever been medically disqualified for flight duty.  The preponderance of evidence does not show that at the time of his separation he was permanently physically unable to perform adequately the duties of his office, grade or rank or that his service was being interrupted due to his injury.  

4.  The rating action by the VA does not necessarily demonstrate an error or injustice on the part of the Army.  The VA, operating under its own policies and regulation, assigns disability ratings as it sees fit.  The VA is not required by law to determine medical unfitness for further military service in awarding a disability rating, only that a medical condition reduces or impairs the social or industrial adaptability of the individual concerned. 

5.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__jns___  __rjw___  __rtd___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR1999033416	
SUFFIX		
RECON		
DATE BOARDED	20001003	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	108.00	
2.		
3.		
4.		
5.		
6.